VILLEGAS v. CORRECTIONAL MEDICAL SERVICE, et al, No. 2:2014cv07337 - Document 3 (D.N.J. 2015)

Court Description: OPINION AND ORDER Plaintiff's IFP is DENIED. ORDERED Clerk shall administratively terminate this case. ORDERED Clerk shall send Plaintiff a blank IFP form. ORDERED Clerk shall serve a copy of this Order upon Plaintiff. Signed by Judge Madeline C. Arleo on 3/12/15. (bdk, )

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FRANCISCO VILLEGAS, Civil Action No. 14-7337 (MCA) Plaintiff, v. CORRECTIONAL MEDICAL SERVICES, INC., Ct al, Defendants. Plaintiff Francisco Villegas, a prisoner confined at New Jersey State Prison, seeks to bring this civil action in ,fornzapauperis, without prepayment of fees or security, asserting claims pursuant to 42 U.S.C. § 1983. The Prison Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are attempting to bring a civil action informapauperis. Under the Act, a prisoner bringing a civil action informapauperis must submit an affidavit, including a statement of all assets, which states that the prisoner is unable to pay the fee. 28 U.S.C. § 191 5(a)(l). The prisoner also must submit a certified copy of his inmate trust fund account statement for the six-month period immediately preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2). The prisoner must obtain this statement from the appropriate official of each prison at which he was or is confined. Id. The entire fee to be paid in advance of filing a civil complaint is $400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of $400. A prisoner who is granted inJörmapauperis status will, instead, be assessed a filing fee of $350 and will not be responsible for the $50 administrative fee. If in forma pauperis status is denied, the prisoner OPINION AND ORDER must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the complaint will be filed. If the prisoner is granted informapauperis status, the prisoner must pay the full amount of the $350 filing fee as follows. 28 U.S.C. § l915(b)(1). In each month that the amount in the prisoner’s account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody of the prisoner shall assess, deduct from the prisoner’s account, and forward to the Clerk of the Court, payment equal to 20% of the preceding month’s income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). Plaintiff may not have known when he submitted his complaint that he must pay the filing fee, and that even if the full filing fee, or any part of it, has been paid, the Court must dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If the Court dismisses the case for any of these reasons, the Act does not permit the prisoner to get his filing fee back. If the prisoner has, on three or more prior occasions while incarcerated, brought an action or appeal in a court that was dismissed on any of the grounds listed above, he cannot bring another action informa pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 19 15(g). In this action, Plaintiff failed to submit a complete in formapauperis application as required by 28 U.S.C. § 19l5(a)(l). (2), including a certified account statement. Specifically, although Plaintiff submitted a typewritten in forn2a pauperis application, Plaintiff did not fill out the correct version of the form, which is entitled DNJ-ProSe-007-A-(Rev.05/2013), and he also did not include a certified account statement as required by 28 U.S.C. 2 § 1915(a)(l), (2). THEREFORE, it is on this (7 day of________ ORDERED that Plaintiff’s request to proceed in forma pauperis is hereby DENIED, without prejudice; and it is further ORDERED that the Clerk of the Court shall administratively terminate this case, without filing the complaint or assessing a filing fee; Plaintiff is informed that administrative termination is not a “dismissal” for purposes of the statute of limitations, and that if the case is reopened, it is not subject to the statute of limitations time bar if it was originally filed timely, see Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (2013) (describing prisoner mailbox rule generally); Dasilva v. SherW’s Dept., 413 Fed.Appx. 498, 502 (3rd Cir. 2011) (“[The] statute of limitations is met when a complaint is submitted to the clerk before the statute runs ..“); and it is further ORDERED that the Clerk of the Court shall send Plaintiff a blank form application to proceed informapauperis; and it is further ORDERED that if Plaintiff wishes to reopen this case, he shall so notify the Court, in writing addressed to the Clerk of the Court, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Room 4015, Newark, NJ 07101, within 30 days of the date of entry of this Order; Plaintiff’s writing shall include either (1) a complete, signed inJörmapauperis application, including a certified six-month prison account statement, or (2) the $400 fee including the $350 filing fee plus the $50 administrative fee; and it is further ORDERED that upon receipt of a writing from Plaintiff stating that he wishes to reopen this case, and either a complete informapauperis application or payment of the filing and administrative fees within the time allotted by this Court, the Clerk of the Court will be directed to reopen this case; and it is finally 3 ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by regular U.S. mail. thw\Z Madeline Cox Arleo, District Judge, United States District Court 4
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